Sherlock in the public domain? Elementary… or not…

In the end, copyright law may prove to be a craftier enemy than James Moriarty.

That, at least, could be the opinion of Arthur Conan Doyle’s estate, which was dealt a blow by the 7th Circuit on June 16. The court ruled that a large chunk of the great detective’s stories are now in the public domain and companies and individuals wishing to publish stories about Holmes are free to do so without paying a licensing fee, at least in most circumstances.

The crux of the issue in this case is the serialized nature of the character. The first adventure of the great detective, A Study in Scarlet, was published in 1887, but the last Conan Doyle story featuring the character was not published until 40 years later. The earlier stories are in the public domain, but the later tales are still protected by American copyright law for a few more years.

This set up the argument between the Conan Doyle estate and publisher Leslie Klinger. Klinger felt that, since a majority of the Holmes stories are in the public domain, he should not have to pay a licensing fee. The estate of the late author contends that, since the later stories do a great deal to flesh out the Holmes character, the copyright protection should extend until the last Holmes story enters the public domain (sometime in 2022). This would have essentially extended copyright protection over the character to 135 years.

Thus, the 7th Circuit was faced with a challenge as literary as it was legal. And it ruled in favor of Klinger, deciding that “The term of copyright protection for a character is tied to the work in which that character initially appeared,” explains Allison Brehm, partner at Kelley Drye. “If a character is distinctive enough to merit protection, the clock starts running from the minute it appeared in a copyrighted work. That will be the determining factor in assessing whether the character is in the public domain or not.” However, she says if the copyright on the initial work has expired and the character appears in a later work expressed in new and different ways, those traits may be subject to protection.

This is important news for individuals and companies who own characters whose copyright protection may soon expire. A large entertainment company like, say, The Walt Disney Company, would be interested in extending its copyright on a valuable character like Mickey Mouse. The character first appeared in the 1928 short “Steamboat Willie,” but in the 1930s it underwent design and character changes. Therefore, those later changes to the character would be protected even after its initial appearances fell into the public domain.

“The doctrine to protect characters in copyrighted works remains alive and well,” says Brehm. “A character that is sufficiently distinctive may earn copyright protection. Further, the 7th Circuit ruling confirms that when a work with a copyrighted character falls into the public domain, if that character is featured in subsequent works not in the public domain that include traits that are sufficiently distinctive, those new traits are protected and cannot be copied.” So, a company like Disney could be disappointed in the Klinger ruling, but can hold onto the knowledge that it won’t lose all of its protection for a beloved character in one fell swoop.

The Conan Doyle Estate’s attempt to extend the copyright of Sherlock Holmes well past the initial period of coverage hinged on that idea that the alterations to the character would impact the term of copyright, but that idea was struck down. “The law in the Seventh Circuit is now that alterations to a serialized character cannot extend the term of the copyright on the version of the character that first achieved protection,” Brehm explains. “The good news is that the ruling reinforces the idea that serialized characters are subject to protection, but clarifies that, at least in the Seventh Circuit, the term of protection for the character as it initially appeared will not be affected by publishing subsequent iterations of that character.”

Future cases, then, could require judges to dust off literary analysis skills they may not have used since high school. They will be required to look at elements of characters and plot, though the litigants in future cases could break the works down to aid the judge’s analysis.

While it may take a mind as keen as Holmes’ to look at a work, filter out the unprotected elements of a character and hone in on the new additions that may be protectable, Brehm says that “more and more judges are willing to make this determination, oftentimes early in a litigation.” And at that point, the decision should be elementary.